Louis M. Natali, Jr., Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Melvin Dildine, Asst. Dist. Atty., Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., filed an opinion in support of affirmance in which O'Brien, J., joins. Pomeroy, J., filed an opinion in support of affirmance. Roberts, J., filed an opinion in support of reversal in which Nix, J., joins. Manderino, J., dissents. Jones, C. J., did not participate in the consideration or decision of this case.
The Court being equally divided the judgments are affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
On June 9, 1972, the appellant, Donald Bryant, was convicted by a jury of burglary, aggravated robbery and murder in the first degree. On the murder conviction, the jury fixed the punishment at death. Post trial motions were subsequently denied by a court en banc. The sentence of death fixed by the jury was then "set aside", and a sentence of life imprisonment was imposed on the murder conviction. Additional prison sentences were imposed on the burglary and robbery convictions, and it was directed that these particular sentences be served concurrently with each other, but consecutively with the life imprisonment sentence imposed. This one appeal was filed in this Court.*fn1
The sufficiency of the evidence to warrant the jury's verdict is not in issue, nevertheless, we have examined the record and find ample evidence therein to sustain the convictions. Suffice to say, the trial evidence established that on May 6, 1970, Bryant and three other young men
brutally and repeatedly assaulted one Isadore Selez with blunt instruments in the course of perpetrating a robbery at the victim's junkshop in Philadelphia. As a result of the blows, Selez's skull was crushed like an egg and he died instantly.
The primary assignment of error involves the use at trial of evidence of an oral incriminating statement and a subsequent recorded incriminating statement made by Bryant to the police. Initially, it is maintained this evidence should have been suppressed*fn2 because it was the product of an unnecessary delay between arrest and arraignment. See Rule 118 (now 130) of the Pennsylvania Rules of Criminal Procedure. See also Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). The pertinent facts disclosed by the record are these.
Bryant and others were taken into police custody about 5:00 p. m. on May 7, 1970, on an unrelated burglary charge. Because Bryant and his companions fit the descriptions given the police of those suspected of having committed the Selez robbery and killing, they were transferred to Homicide Headquarters about 5:45 p. m. for questioning about these crimes. Upon arrival Bryant was immediately advised of his constitutional rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was told he was suspected of having participated in the Selez robbery and killing. During a period of questioning lasting about one-half hour or until 6:20 p. m., Bryant denied any knowledge of, or involvement in, these crimes. He was then left alone until about 7:05 p. m., when he was requested to take a polygraph examination. He consented and such a test proceeded. When it was completed about 8:40 p. m., Bryant was told the test demonstrated he was lying. Bryant then changed his story and admitted he was involved in the Selez crimes. He was then questioned
further until 9:25 p. m., during which period he detailed the robbery, the killing and his participation. From 9:25 p. m. until 11:45 p. m., Bryant rested and received medical treatment for an ankle complaint. From 11:45 p. m. until 12:15 a. m. on May 8th, he was questioned again and supplied additional facts. After a further period of rest lasting until 1:20 a. m., the police repeated the "Miranda" warnings and began the recording of a formal statement.*fn3
Accepting there was an "unnecessary delay" between his arrest and arraignment, Rule 118 (now 130), Pa.R.Crim.P., did not require the suppression of the evidence of Bryant's self-incriminations, because this evidence had no reasonable relationship to the delay. Cf. Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974). In order for this evidence to be excluded because of the delay, the accused must show prejudice resulting from the delay, i. e., "a nexus between the delay and the ...